Media Mentions

An op-ed by Noah Feldman. President Donald Trump can’t carry out his threat to take away the National Football League’s tax-exempt status aimed at making the league force players to stand for the national anthem. That would be a clear violation of the First Amendment. It’s true that the NFL had voluntarily given up its tax break two years ago, which means that Trump’s threat wouldn’t have practical effect even if he could make it stick. But as the Supreme Court recently held, even an effort to violate free speech based on a factual mistake is illegal.

An op-ed by Paul Butler. “A pack of rabid animals.” That’s how John McNesby, president of the Philadelphia Fraternal Order of Police, described local Black Lives Matter activists who picketed outside the home of a Philly cop who shot black suspects in the back on two separate occasions. After the officer was suspended, the local FOP had a fund-raiser for him, with proceeds from the $40-per-ticket event going toward the officer’s living expenses.

Retailers selling mobile phones will continue to have to warn customers in the City of Berkeley about possible exposure to radiation from the devices, after a federal appeals court on Wednesday declined to revisit a ruling upholding the city’s rule...“The decision of the district court was correct — twice. The decision of the court of appeals was correct — now twice,” Harvard Law professor Lawrence Lessig, who argued for the city in the case, said in an email. “We are hopeful that this will bring an end to this case, and the City of Berkeley will again be free to govern its citizens as its citizens demand.”

Jerry Jones may want to bench Dallas Cowboy players who don't stand for the national anthem, but NFL owners could find themselves facing a First Amendment lawsuit if they punish football players or coaches for their protests after taking government money into the private business of professional football...The money exchanged between governments and pro football teams could mean that discipline enforced by the team could be "fairly attributed to a government entity, meaning the employer could not discipline someone for taking a political position," Harvard Law School professor Mark Tushnet said.

The Harvard Law Review selected more female editors than male editors to join the prestigious journal’s ranks this summer, welcoming a majority-female class for the first time in the publication’s history...ImeIme A. Umana ’14 [`18], the president of the Law Review, wrote in an email that the publication made efforts this year to reach as many first-year Law students as possible during their recruiting process, hosting panels and casual coffee chats with current editors. “These efforts, we hoped, demystified the competition and encouraged students not to count themselves out of joining the journal,” Umana wrote...Leila Bijan [`19], one of the newly selected editors and a vice president of the Women’s Law Association, said she counted the names on the list she was sent the day she was accepted and was very impressed by the number of women. “It actually caught my eye that there were a lot of women on there, and I went through and I counted that there were more women than men,” Bijan said...Seth R. Berliner [`18], the vice president of the Law Review and coordinator of recruiting, wrote in an email that increased representation of women on the publication is a good sign for diversity in the legal profession more broadly. “The editors of the Harvard Law Review go on to be leaders of the legal community,” Berliner said.

A team at the Law School chipped in on the work of the Nobel Peace Prize-winning International Campaign to Abolish Nuclear Weapons, providing legal advice as the group negotiated an unprecedented disarmament treaty. The Law School’s International Human Rights Clinic joined ICAN in its work to pass a United Nations treaty in July asking countries to abolish their nuclear weapon programs and supplies...The IHRC group included four Law School students—Molly Doggett, Alice L.M. Osman, Carina M. Bentata Gryting, and Lan Mei—as well as Anna Crowe, an instructor at the clinic and Bonnie Docherty, a lecturer at the Law School. “The treaty is a major step and a major step towards nuclear disarmament. It is not the end itself so we’d love to have nuclear states on board, but we’re not surprised and not concerned that they’re not on board,” Crowe said.

President Donald Trump has until October 15 — this Sunday — to make a decision that could sabotage the nuclear deal with Iran. Under the Iran Nuclear Agreement Review Act (INARA), passed by Congress in May of 2015, the president must certify that Iran is in compliance with the deal’s terms every 90 days...“None of those [sanctions waivers] involved any legislation by Congress,” explains Elena Chachko, a doctoral student at Harvard Law School and contributor to the national security blog Lawfare. “If [Trump] wanted to, he could basically stop implementing the agreement.”

An op-ed by Adrian Vermeule. The problem is the relentless aggression of liberalism, driven by an internal mechanism that causes ever more radical demands for political conformism, particularly targeting the Church. The solution is an equally radical form of strategic flexibility on the part of the Church, which must stand detached from all subsidiary political commitments, willing to enter into flexible alliances of convenience with any of the parties, institutions, and groups that jostle under the canopy of the liberal imperium.

On Sunday, Dallas Cowboys owner Jerry Jones indicated that he would bench players who didn't stand for the national anthem before games...But does Jones, or any other owner, have the right to bench a player for protesting during the anthem? Could such a benching be a violation of the NFL's collective bargaining agreement or, beyond that, could it even be illegal?...Benjamin I. Sachs, Kestnbaum Professor of Labor and Industry, Harvard University: "I think being benched is adverse employment action. I also think that the protests are in fact directly related to their status as NFL employees. If they are protesting racial discrimination, that's something that impacts their status as NFL players. So I think benching would be violating federal law."

In 2016, then Republican presidential nominee Donald Trump pledged to "put coal miners back to work." That promise included replacing the Obama administration's Clean Power Plan, which sought to slash power sector emissions, and was the centerpiece of the U.S. commitment to the Paris Climate Agreement...Ari Peskoe, senior fellow in electricity law with the Harvard Law School, noted the EPA did not issue a new finding contradicting the Clean Power Plan’s analysis on energy options for utilities. “[There is] nothing in here about renewable energy was too expensive. They are not going back to the record to find new analysis,” Peskoe said.

...The age-old problem of balancing free expression with harmful, and false, content seems like an impossible problem. But online, at least, there’s a lot that sites can do to fix it, says Susan Benesch, a faculty associate of Harvard University’s Berkman Klein Center for Internet and Society who studies dangerous speech on and offline. Indeed, our decades of experience in web design have already taught many sites how to discourage incivility and promote reasoned debate. “There is often the assumption in public discourse and in government policymaking and so forth that there are only two things you can do to respond to harmful speech online,” says Benesch.

An op-ed by Noah Feldman. Several state attorneys general have announced they will sue to block the Environmental Protection Agency’s rollback of President Barack Obama’s signature Clean Power Plan. Can they win? And should they? The answer to both questions is no, but not because of anything inherently wrong with the plan to cut greenhouse-gas emissions from power plants. Although administrative decisions must be rational, they are permitted to reflect the president’s political priorities and beliefs. Donald Trump won the election, and now he gets to impose his pro-coal environmental vision. That may be terrible for the earth, but it’s good for democracy.

Shortly after taking over Uber Technologies Inc. in September, Dara Khosrowshahi told employees to brace for a painful six months. U.S. officials are looking into possible bribes, illicit software, questionable pricing schemes and theft of a competitor’s intellectual property...Now as federal authorities investigate the program, they may need to get creative in how to prosecute the company. “You look at what categories of law you can work with,” said Yochai Benkler, co-director of Harvard University’s Berkman Klein Center for Internet and Society. “None of this fits comfortably into any explicit prohibitions.”

Should sophisticated computer models help judges predict which defendants are safe enough to release before trial? Or should judges rely on their own wisdom, discretion, and experience to make those decisions?...Jonathan L. Zittrain, a Harvard law professor, pointed out that computerized risk scores assigned to criminal defendants could be based on data that is biased because it comes from a criminal justice system in which people of color are disproportionately stopped and arrested...But Christopher L. Griffin, Jr., research director at Harvard Law’s Access to Justice Lab, said predictive models could be helpful in guiding judges by adding to the range of data available to them when they decide whether to jail or release defendants before trial. “We like to think of these tools as not necessarily de-biasing mechanisms, but information-enhancing ones that increase the signal-to-noise ratio,” he said.

Two high-powered attorneys who helped win an acquittal for former New England Patriots star Aaron Hernandez took to Twitter Tuesday to defend Jemele Hill, the embattled ESPN anchor whom the network suspended Monday over some of her tweets. The lawyers, Linda Kenney Baden and Ronald Sullivan Jr., who defended Hernandez during his second murder trial and continue to represent his estate, suggested Tuesday that ESPN might have violated Connecticut state law when it disciplined Hill...Sullivan, a Harvard Law professor, echoed Kenney Baden’s comments in his own postings. He tweeted that Hill “has enforceable rights under state law. Limits to when ESPN can silence valid speech.”

Donald Trump's Twitter account now has 40 million followers. It ranks 21st worldwide among 281.3 million or so accounts. It’s no secret that Trump is proud of his ability to use the account to communicate directly with his constituents...It raises the question: Are social media platforms like Twitter subject to the First Amendment? Is there a right to free speech on social media owned by private corporations?...Harvard Law School’s Noah Feldman added his voice to the dissenters.

Procter & Gamble declared victory Tuesday over activist investor Nelson Peltz, saying initial figures show it won the biggest proxy battle in history. But the narrow win puts pressure on the owner of Bounty and Tide to move faster in its turnaround and regain the support of investors...P&G and Trian are estimated to have spent $60 million to support their respective causes. "The titanic amount of money that has been spent on this contest is going to be a big flashing light for other companies that face activists challenge," said Stephen Davis, an associate director and senior fellow at the Harvard Law School Programs on Corporate Governance and Institutional Investors.

An op-ed by Cass Sunstein. Because economics is such a diverse field, with many distinguished thinkers, predicting the winner of the Nobel Prize in economics is notoriously difficult. But suppose that we narrowed the field, so as to focus on candidates who have not only made important theoretical contributions, but have also had a significant impact on the world, and affected the lives of numerous people?

Last month, representatives from 22 states gathered in Arizona to plan the nation’s first constitutional convention since 1787...“Our Constitution needs some pretty important repair and it’s absolutely clear Congress is never going to propose it,” says Lawrence Lessig, a left-leaning Harvard law professor and convention enthusiast. “In my view, [a convention] is the only option.”...For instance, says Harvard law professor Michael Klarman, “we have this Electoral College system which allows you to become president even though your opponent won two percent more of the vote — which is a lot of votes, 3 million votes.”

One thing that’s becoming very clear to me as I report on the digital economy is that a rethink of the legal framework in which business has been conducted for many decades is going to be required. Many of the key laws that govern digital commerce (which, increasingly, is most commerce) were crafted in the 1980s or 1990s, when the internet was an entirely different place...Meanwhile, a case that might have been significant mainly to digital insiders is being given a huge publicity boost by Harvard professor Laurence Tribe, the country’s pre-eminent constitutional law scholar. He has joined the HiQ defence team because, as he told me, he believes the case is “tremendously important”, not only in terms of setting competitive rules for the digital economy, but in the realm of free speech. According to Prof Tribe, if you accept that the internet is the new town square, and “data is a central type of capital”, then it must be freely available to everyone — and LinkedIn, as a private company, cannot suddenly decide that publicly accessible, Google-searchable data is their private property.

An interview with Lawrence Lessig. The results of the 2016 presidential election prompted many Americans to question the electoral college – a winner-takes-all system which empowers a group of 538 electors to name the next president of the United States. Equal representation, citizen-funded elections and equal access to the ballot are the three actionable steps towards change, suggests Equal Citizens, a nonprofit founded by renowned law professor Lawrence Lessig.